March 31, 2023

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AG’s office files notice to appeal SB 40 ruling, requests stay

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Kansas Attorney General Derek Schmidt is asking the Kansas Supreme Court to press the pause button on a recent Johnson County District Court Judge’s ruling that called SB 40 “unenforceable.”

Lawmakers passed SB 40 into law last March, overhauling the Kansas Emergency Management Act to provide due process for those aggrieved by COVID-related restrictions and mandates. However, a Johnson County District Court judge ruled the new law “unenforceable” earlier this month. 

In its filing, Schmidt’s office says the decision “is creating unnecessary and disruptive confusion about the validity of other provisions of SB 40.”

In the original lawsuit, Shawnee Mission School District parents sought from the school hearings for exemptions from mask mandates. The SMSD superintendent denied the request for a hearing. The parents appealed to the district court, where Judge Hauber issued a ruling that deemed SB 40 unconstitutional.

According to the stay motion from the AG’s office, the Court’s order creates confusion that could hamper the state’s ability to respond to future disaster emergencies.

Order creates confusion, AG motion says

The rate of daily COVID cases in Kansas has doubled since the Fourth of July, and health authorities are debating whether to re-institute health orders like mask mandates. 

Judge David Hauber’s order takes particular issue with provisions of SB 40 that set tight timelines for ruling on SB 40 lawsuits, or cases directly related to emergency mandates. During the initial hearing on the topic, Hauber warned that a requirement that judges issue opinions in SB 40 cases within seven days likely violated the separation of powers.

“I have some difficulties with the short trigger the legislature has tried to impose on the courts,” Hauber said during the initial hearing. “This is like a temporary restraining order on steroids.”

The AG’s motion for a stay, however, notes that Hauber’s ruling strikes down provisions of SB 40 that are unconnected to the judicial review process. For instance, the motion mentions that on section of the KEMA update adds the Vice President of the Senate as an eighth member of the Legislative Coordinating Council.

“Surely there is no constitutional problem with this provision…,” the AG’s motion reads. “…But the broad language of the Court’s opinion creates uncertainty about this provision, uncertainty that could produce harm given the responsibilities of the LCC.”

In addition to filing a motion seeking a stay of Hauber’s ruling, the AG’s office filed a notice to appeal Hauber’s decision.

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